நீதிபதிகள் நியமனம் - Collegium system - NJAC

நீதிபதிகள் நியமனம் - Collegium system - NJAC___________________________________________________________


உச்ச நீதிமன்றம், உயர் நீதிமன்ற நீதிபதிகள் நியமனம் மற்றும் மாறுதல் விவகாரங்களுக்காக தேசிய நீதிபதிகள் நியமன ஆணையம் அமைப்பது அரசியல் சாசனத்துக்கு எதிரானது என்று உச்ச நீதிமன்றம் தீர்ப்பளித்தது.

மேலும், நீதிபதிகள் நியமன விவகாரங்களை  கடந்த 22 ஆண்டுகளாக மேற்கொண்டுவரும் உச்ச நீதிமன்ற தலைமை நீதிபதி அடங்கிய 'கொலீஜியம்' அமைப்பு முறையே தொடர்ந்து நடைமுறையில் இருக்கும் என்றும் அந்தத் தீர்ப்பில் தெரிவிக்கப்பட்டுள்ளது.

அத்துடன், இந்த வழக்கை பேரமர்வுக்கு மாற்றக் கோரிய மத்திய அரசின் மனுவையும் உச்ச நீதிமன்றம் தள்ளுபடி செய்தது. இந்தத் தீர்ப்பு குறித்து பல தரப்புகளிலிருந்தும் கருத்துகள் எழுந்துள்ளன.

சட்ட அமைச்சர் சதானந்த கவுடா: "தேசிய நீதிபதிகள் நியமன ஆணையம் குறித்த தீர்ப்பு ஆச்சரியமாக உள்ளது. இந்த ஆணையம் நாடாளுமன்றம் மற்றும் மாநிலங்களவை பெரிதும் ஆதரித்த ஒன்று. மக்களின் 100% ஆதரவு இந்த ஆணையத்துக்கு இருந்தது."

அட்டார்னி ஜெனரல் முகுல் ரொஹாட்கி: "நீதித்துறை நியமனங்களில் வெளிப்படைத்தன்மை கோரும் மக்களின் விருப்பம், சட்டமியற்றுபவர்களில் பாதி பேரின் விருப்பம் மற்றும் நாடாளுமன்றத்தின் இரு அவைகளின் ஏகமனதான விருப்புறுதியை புறக்கணிக்கும் தவறான தீர்ப்பாகும் இது. கொலீஜியம் முறையை தக்க வைப்பது முறையல்ல. இந்தத் தீர்ப்பு மறுசீராய்வுக்கு உகந்ததல்ல. நாடாளுமன்றம் முடிவெடுக்கலாம். ஆனால் நான் அவர்களுக்காக பேச முடியாது."

National Judicial Appointments Commission: All you need to know  -HT Correspondent, Hindustan Times,

The Supreme Court on Friday struck down the National Judicial Appointments Commission (NJAC) that was aimed at replacing the two-decade-old collegium system of appointing judges in the higher judiciary.

A five-judge bench, headed by justice JS Khehar, had reserved its judgement on July 15 after a marathon hearing for 31 days on the issue of validity of the 99th constitutional amendment and the NJAC act.

The petitions challenging the new legislation were filed by Supreme Court Advocates on Record Association (SCAORA) and others contending that the new law encroached on judicial independence.

Here’s all about the NJAC:

What is the NJAC?

The NJAC propose a transparent and broad-based process of selection of judges of the Supreme Court and high courts. They were to be selected by the commission whose members were be drawn from the judiciary, legislature and civil society.

How were judges appointed before?

The Constitution’s Articles 124 and 217 dealt with the appointment of judges of the higher judiciary. According to these articles, judges could be appointed by the President of India after consulting the Chief Justice of India (CJI) and other judges.

The word “consultation” is significant because in 1993, in the Second Judges case, the SC decided that the CJI must agree to all judicial appointments. This created the collegium system, wherein the three seniormost Supreme Court judges decided on who would be a high court or Supreme Court judge.

What was to be the role of NJAC ?

It would have replaced the collegium. With the NJAC amendment, Articles 124 A, B and C were added to the Constitution to make the NJAC valid.

Articles 124 A and B define the NJAC, its members and their duties, while Article 124 C empowers Parliament to make laws in the future to regulate the procedure for the appointment of judges.

Who would have been on the NJAC?

The CJI was to head the six-member commission, other members of which would have been the law minister, two senior Supreme Court judges and two eminent people.

A collegium comprising the Prime Minister, the CJI and the leader of the single largest party in Lok Sabha would have selected the two eminent people. One eminent person would have been nominated from among the Scheduled Castes, Scheduled Tribes, OBCs, minorities or women.

How did the collegium system come about?

The collegium system evolved after three landmark judgements of the SC known as the ‘three judges cases’: the first, second and the third judges cases.

The first judges case was the SP Gupta case. It decided on December 30, 1981, that the President could, with sensible reasons, refuse judges’ names recommended by the CJI. This gave the executive more power than the judiciary in the appointments process.

In the second judges case, a nine-judge bench of the SC went the other way and created the collegium by reversing the first judges case: the majority verdict written by justice JS Verma in the Supreme Court Advocates on Record Association vs the Union of India case on October 6, 1993, said that the CJI must be given the primary role in judicial appointments.

However, the three judges ruling in this case could not agree on the precise role of the CJI in the process, leading to years of confusion surrounding the appointment and transfer of judges.

The last judgement in the series, the 1998 third judges case, cleared things up after the President asked the Supreme Court to do so. In this case, the SC came up with nine guidelines on how the collegium system should function. It cemented the supremacy of the judiciary in the appointment and transfer of judges.

India’s Judicial Reforms: A Never-Ending Story - Jay Bhattacharjee

The last few weeks have seen very interesting developments in the nation’s apex court. Under the massive and elegant dome of the building in a corner of the capital’s Lutyens zone, a momentous legal battle is being played out—a battle that might alter the fundamental structure of our Republic’s justice-delivery system. Since two strongly-equipped and determined forces are involved, it is anybody’s guess how this clash of arms (read ideologies and viewpoints) will end.

In one camp, we find the Indian higher judiciary (judges of the Supreme Court and the various High Courts) and in the opposing camp are the executive (the government) and the legislature (Parliament). The case that is being heard by a five-judge Constitution Bench of the Supreme Court pertains to the constitutional validity of the National Judicial Appointments Commission (NJAC) Act, 2014, as well as the Constitution 99th Amendment Act, 2014, that amended Articles 124 and 217 of the Constitution.

During the last few years, I have analyzed and assessed this complex and sensitive subject in various publications and forums. There are problems in writing on this theme in the public domain; there is always the possibility, however remote, of the draconian provisions of the Contempt of Court Act being invoked against an author who crosses the undefined and shiftinglakshman rekha laid down by the judiciary, or, to mix metaphors, traverses the Rubicon, an analogy more in tune with the Western mores, so facilely adopted by the Delhi elite. Therefore, all writers on this subject are always watching their punches and pulling back whenever they sense they are treading the precariously thin line.

However, the situation on the ground is so disturbing that I feel, in the good company of some other analysts, I should revisit the thorny subject once again.

During the course of the recent hearings, many serious charges and accusations have been leveled against some members of the higher judiciary. The Attorney General, Mukul Rohatgi, arguing on behalf of the Union Government and defending the NJAC Act and the Constitution Amendment Act, strenuously emphasised that the earlier “collegium system” did not work well at all.

The Bar Association of India also concurred and said that the “system of appointments by a collegium of judges has not worked satisfactorily and has not succeeded in appointing the best available talent to the highest judiciary”. Even the eminent legal luminary, Fali Nariman, who was opposing the NJAC Act, graciously admitted that the collegium system had not been scrupulous in carrying out its task of appointing judges and had attracted a lot of valid criticism.

If Nariman was studiously proper in his observations, one senior legal luminary, quite popular on the small screen, was withering in his comments. According to him, the old (and discredited) collegium structure had appointed a number of unsuitable and unethical persons who had brought disrepute to the entire judiciary. Of course, he added the usual caveat that the majority of judges were upright and good. The spectre of the contempt law hangs even over the senior lawyers, though they, evidently, have greater leeway.

The higher judiciary in India has certainly had a very chequered track record in the last five decades or so. We have witnessed a catastrophic fall in the quality of our judges in the apex courts and the High Courts. In our formative years, we have read, heard and occasionally seen titans like S.R. Das, M.C. Chagla, P.B.Gajendragadkar, and H.R. Khanna (to randomly cite just a few) in the nation’s halls of justice. Among these four, Chagla is the only one who did not make it to the rotunda of the majestic building on Delhi’s Tilak Marg, that houses the Supreme Court.

Over the last three decades, the stench of corruption has become all-pervasive in the country’s judicial corridors. Many judges of the main High Courts in the country and the Supreme Court have come under the scanner. In the close-knit legal fraternity, there are numerous reports and accounts of wayward judges, whose peccadilloes range from appalling standards of legal erudition, to inefficiency, favouritism, and finally, to that epitome of judicial sin, corruption. However, every single judge with a cloud hanging over his or her head got away clean with the alleged offences he or she was tainted with.

After the Constitution came into force, not a single sitting High Court or Supreme Court judge has ever been impeached. The last judge to be axed in this country was before it became a Republic. The person was an Allahabad High Court judge, Shiva Prasad Sinha, who was removed from office by the-then Governor-General, C. Rajagopalachari, on the 22nd April 1949, following an enquiry report from the Federal Court of India, the predecessor of the Supreme Court. Sinha was charged under the colonial-era Government of India Act, 1935. There is a delicious irony in all this, since this essay is being written in a journal founded by the great CR.

From the late 1980s onwards, things went rapidly downhill. A series of scandals enveloped the higher judiciary; it appeared that some members of this august group had decided to brazen things out. From accusations of promoting the interests of their off-spring to writing out judgement orders in advance, cash deliveries at their residence, links with the underworld et al, the list of infamies grew and widened in scope. One CJI’s official residence also served as the registered address of the companies run by his sons. Another Supreme Court judge was allegedly involved in a grotesque scam to raid the Provident Fund accounts of government employees parked in the official treasury.

Yet, despite this mounting pile of evidence that things were far from kosher, there was very little that could be done with wayward judges. The only way under Indian law to remove a Supreme Court / High Court judge from his office is through the convoluted process of impeachment. To recap for the general reader, Supreme Court and High Court judges are protected by the tortuous provisions of Article 124(4), read in conjunction with Article 217 (1)(b) of the Constitution. Their removal can take place only through an order of the President, passed after a judge has been impeached by Parliament.

The rules of impeachment easily surpass those of a very difficult hurdles race. The accused judge must be pronounced guilty of “misbehaviour or incapacity” by both the Rajya Sabha and the Lok Sabha, and in each case, the verdict has to be supported by a majority of the total members of each House and by a majority of “not less than two-thirds of the members of the House present and voting”. Wags have remarked that our Republic’s Constitution has made the senior judiciary one of the most protected species in the globe.

The founding-parents of our Republic, who wrote the inspiring Constitution of the young nation with an ancient history of justice and jurisprudence would have been truly ashamed if they had experienced the various peccadilloes of our judiciary. that we have been seeing. And most certainly, they would have been outraged that this group had widened and enlarged its constitutional immunity by a most interesting judgement, forty one years after the Constitution came into effect. I refer, of course, to the Supreme Court’s landmark decision in K. Veeraswami vs Union of India and Others, {1991] 3 SCC 655], in which a majority of judges (4 to 1) decided on an issue of vital importance that affects every one of us. Yet, this is a legal development of cardinal importance that very few Indian citizens are aware of.

In a long and disjointed judgement, the bench ordained that any criminal case against a Supreme Court or High Court judge would be registered only after the President sanctions the prosecution, after consulting the Chief Justice of India (CJI) and in accordance with his advice. The overt logic for this decision was that the higher judiciary required protection from any executive interference.

The operative part of the diktat reads as follows :

“It is accordingly directed that no criminal case shall be registered under Section 154, Cr.PC against a Judge of the High Court, Chief Justice of High Court or Judge of the Supreme Court unless the Chief Justice of India (CJI) is consulted in the matter. ….If the CJI is of opinion (sic) that it is not a fit case for proceeding under the Act, the case shall not be registered. ….It is necessary that the CJI is not kept out of the picture of any (emphasis added) criminal case contemplated against a Judge”.

Let’s be very clear. This was a veritable coup against the Republic’s citizens. The ramifications are mind-boggling. Section 154 of the Cr.PC pertains to the draconian First Information Report (FIR) that is every law-abiding citizen’s nightmare. This is the law that allows any thanedar in the country to knock on your doors, even at night, and take you to a lock-up in the police station where the FIR was lodged, if the offence recorded in the FIR is “cognisable and non-bailable” under the Cr.PC. There are some relatively minor safeguards and protections that the Supreme Court and some High Courts have pronounced in recent years to control the powers of the police after registration of an FIR.

To return to the judiciary, I must again emphasise that the country’s senior judiciary, through the Veeraswami verdict, has conferred upon itself a blanket immunity that the Constitution’s framers never dreamt of.

A plain reading of the judgement suggests only one conclusion—a judge can commit any offence under the laws of the land but his or her prosecution can only be initiated with the CJI’s prior permission. This is certainly the position that has been accepted by everyone in the establishment.

More retrograde developments have taken place since Veeraswami. In the Soumitra Sen case, a sitting High Court judge was accused of committing grave financial improprieties before he was elevated to the Bench. As a lawyer, he was charged with misappropriating funds while carrying out his work as the Official Liquidator in a bankruptcy matter. Sen was brought up for impeachment proceedings in Parliament, instead of being tried in an ordinary court of law. This is an unwarranted extension of the ratio of the Veeraswami decision to offences alleged to have been committed before a judge assumed office.

During all the elaborate arguments advanced by the various parties in the last week before the Constitution Bench, there was not even a whisper about the Veeraswami ghost that was hovering in the court room. Everyone waxed eloquent about a free judiciary, protection from executive interference, transparent judicial appointments etc. No one was even thinking about how the nation can make the senior judiciary truly accountable as long the Veeraswami judgement is not repealed through an Act passed by Parliament, and, equally, an effective impeachment procedure is not devised. The restoration of the pristine glory of our Constitution was not even on the agenda.

The present debate in the Supreme Court will, therefore, be nothing but shadow boxing, unless it tackles the core issues. Mario Puzo made a very apt assessment of the justice delivery system of our times when he said that “The lawyer with his briefcase can steal more than a hundred men with guns can”. And, of course, Jean Giradoux : “No poet ever interpreted nature as freely as a lawyer interprets truth”.

-கே.எஸ்.இராதாகிருஷ்ணன்.

16-10-2015

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